Original Foreign Affairs Federalism

Lawson, Gary, Boston University Law Review

ORIGINAL FOREIGN AFFAIRS FEDERALISM

Two of the most doctrinally bewildering topics in American constitutional law are federalism and foreign affairs. Put the two together and it requires the patience of Job and the wisdom of Solomon to navigate, never mind make sense of, the judicial and political accommodations that have arisen over the course of more than two centuries concerning the relative roles of the national, state, and local governments in matters that implicate American involvement with foreign countries and citizens. i will not go so far as to say that Mike Glennon and Rob Sloane's new book, Foreign Affairs Federalism: The Myth of National Exclusivity,1 is biblical in either ambition or execution. But it is a very, very good book. it is close to indispensable for anyone who is trying to parse the interstices of such underanalyzed topics as foreign affairs preemption, the Compact Clause, and federal common law. It contains powerful and useful analyses of the law governing the federal treaty power. The book even has concise but sophisticated discussions of ancillary topics ranging from Founding-era conceptions of federalism to modern modes of constitutional interpretation. The book's breadth and erudition are truly remarkable. I am delighted for the opportunity to provide this brief review.

It is tempting simply to offer congratulations to the authors and move on. That may even be the wise course of action, given the rather large gap between the authors' knowledge of foreign affairs federalism and my own; in that field, I am at best an interested observer and at worst a dilettante. But I will try to find something critical-or at least analytical-to say, if only to try to draw forth further discussion from the authors.

The authors' self-identified aims in the book are fourfold: (1) "to describe what states and cities in fact do in the realm of foreign affairs," (2) "to explain the basic principles of the Constitution that authorize or limit those activities," (3) "to assess how well those principles reflect and conform to actual practice," and (4) "to suggest how, if at all, those principles might usefully be modified."2 That really amounts to five aims because the third aim requires both identification of actual practices, which is in fact the book's primary focus, and a comparison of those practices with specified constitutional principles.

I have nothing useful, beyond effusive praise, to say about the authors' execution of their first aim. They have painstakingly catalogued an enormous spread of activities of state and local governments that, in one sense or another, involve foreign affairs, ranging from congressionally approved compacts, to local "buy only" policies, to the establishment of foreign trade offices, to what Bill O'Reilly would term "bloviating"3 resolutions of approval or disapproval of various federal policies. Perhaps the authors missed something important along the way, but I can't think of it. The book is worth the price of admission for Chapters 2 and 10 alone, which set out in great detail the range of relevant state and local activities. I also have nothing useful to say about their last, prescriptive aim, because suggesting modifications to real-world practices is a normative enterprise, and I have a generally firm policy of trying to stay away from normative enterprises in scholarship. I will try, however, to say something useful, or at the very least provocative, about the authors' other aims.

I. "TO EXPLAIN THE BASIC PRINCIPLES OF THE CONSTITUTION THAT AUTHORIZE OR LIMIT THOSE [STATE AND LOCAL] ACTIVITIES": WHICH CONSTITUTION?

The opening pages of Foreign Affairs Federalism contain a great many references to "the Framers."4 Fans of the eighteenth century will find considerable discussion in Chapter 1 of theories of federalism and republicanism that influenced the Founding5 and a catalogue of original constitutional provisions that seem to address federalism, foreign affairs, or both. …

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